Court awards occupation rent to part-owners and strikes defences as abuse of process

Case Summary

Jolicouer et al v. Scheibler, Court File No. SC-24-00000030-0000 (Fort Frances)

On April 6, 2026, the Ontario Small Claims Court awarded nearly $30,000 in occupation rent to the two-thirds owners of a rural home that had been occupied by the trustee of the estate that owned the remaining one-third. The trustee had unlawfully occupied the home for nearly five years before being evicted by court order in June 2023.

The decision is a useful—and at times striking—illustration of how equitable principles, prior findings, and practical evidentiary constraints intersect in the Small Claims Court.

Background to the Claim

The proceeding was commenced in the Small Claims Court, then subject to a $35,000 monetary limit (now $50,000). It was far from the parties’ first litigation.

In 1997, Milton Westover transferred several farm properties to his daughter and her husband, the plaintiffs, Joan and Allen Jolicouer. All properties were transferred outright except for the parcel containing Milton’s residence, which remained owned one-third by Milton and two-thirds by the Jolicouers.

In 2013, another daughter, the defendant, Betty Scheibler, moved into the residence. In 2017, Milton commenced an action alleging that the 1997 transfers had been made without his knowledge. Following Milton’s death in August 2018, that action was continued by Betty in her capacity as estate trustee.

That litigation failed decisively. In 2022 ONSC 4550, Fitzpatrick J dismissed the estate’s claim, finding, among other things, that Betty’s evidence was “self-serving and not persuasive”, that she had exercised undue influence over Milton, and that she had been living in the home rent-free following his death. Costs were awarded against her personally in 2022 ONSC 6684.

The Court of Appeal for Ontario dismissed Betty's appeal in 2024 ONCA 81, observing that she had “pursued litigation that chiefly benefited her because of her free living arrangements and the possibility of enhancing her portion of the estate.”

In parallel, a separate application brought by another sister, Debra Westover-Morriseau, resulted in an eviction order in 2023 ONSC 3561, where Pierce J found that Betty had refused to pay occupation rent, denied access to the co-owners, and allowed the property to fall into disrepair.

Betty ultimately vacated the home on or about July 23, 2023.

Attempts to Relitigate Prior Findings are an Abuse of Process

The plaintiffs commenced their claim for occupation rent in July 2024.

Prior to trial, they also brought a motion under 12.02 of the Rules of the Small Claims Court to strike portions of Betty's defence. Rule 12.02 permits the court to strike out a document or part of any document that discloses no reasonable cause of action or defence, is inflammatory, a nuisance, a waste of time, or an abuse of the court's process.

Deputy Judge Jamieson agreed with the plaintiffs, relying on Toronto (City) v. CUPE, 2003 SCC 63, and Danyluk v. Ainsworth, 2001 SCC 44. CUPE states that a circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. Danyluk states that once a material fact is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be litigated in subsequent proceedings. His Honour also agreed that the issues, parties, or cause of action from the prior proceedings need not be the same in order for abuse of process to arise.

On this basis, in reasons released on October 9, 2025, Deputy Judge Jamieson struck out several paragraphs of the defence on the basis that they were attempts to relitigate the conclusions of the Superior Court and the Court of Appeal.

Entitlement to Occupation Rent

The court had little difficulty finding the defendant liable for occupation rent.

Occupation rent is an equitable remedy based on the rebuttable presumption that, where there is no relationship of landlord and tenant, the parties have agreed to an implied contract to the payment of reasonable compensation when one party occupies land owned by another. Liability is based on unjust enrichment principles: there must be an enrichment of the defendant, a corresponding deprivation to the plaintiff, and the absence of a juristic reason for the enrichment or deprivation. The Small Claims Court cited Dagarsho Holdings v. Bluestone, 2004 CanLii 11271 (Ont. S.C.), Cormpilas v. Ioannidis, 2020 ONSC 4831, and Virc v. Blair, 2016 ONSC 49, for the relevant test.

Based on the prior decisions, the court found that defendant had been enriched by her occupation of Milton's home following his passing and that there was a corresponding deprivation to the plaintiffs, who were denied the opportunity to rent out the home or make other economically gainful use of the property.

The court also concluded that the status of the defendant as an estate trustee did not create a juristic reason for her occupation of the home, and there existed no juristic reason for her occupation in her personal capacity. The court also found that the claim of the part-owner plaintiffs to occupation rent was independent of any such claim that might be advanced by the estate for its one-third share.

While the defendant relied on case law indicating that the timing of the claim for occupation rent is a relevant factor and argued that the claim was statute-barred, the court agreed with the plaintiffs that there would have been no way to meaningfully commence their action until the defendant's appeal was dismissed by the Court of Appeal and their ownership interest in the property was secure. Any action commenced prior to that time would have been stayed pending the conclusion of those other proceedings. The Court of Appeal's reasons were released just 5 months before the plaintiffs brought their claim in the Small Claims Court.

Quantum of Occupation Rent

In determining quantum, the court has discretion in fixing occupation rent based on the evidence available. The court agreed that, in this case, the plaintiffs' entitlement to occupation rent should be proportionate to their two-thirds interest in the property.

One relevant factor is the condition of the home. Deputy Judge Jamieson found that it was in poor condition, and following the defendant's eviction was, in his view, uninhabitable. However, he accepted the evidence of the plaintiffs that the condition of the home deteriorated significantly during the defendant's sole occupation, and that her exclusion of the plaintiffs from the home prevented them from taking any mitigating steps or making repairs.

The residence in question was a rural home in small municipality with few available comparators. The plaintiffs provided affidavit evidence from a local landlord of two other detached homes in the municipality, which rented for $1,500 to $1,550 per month, as well as of public sector rental apartments in the district, with rates of between $957 and $1,235 per month. The court concluded that an appropriate quantum was $750, being approximately half of the market rent charged by the local landlord. His Honour discounted the sum to account for the more remote location of the residence at issue and its poor condition.

Regardless, at $750 per month for 59 months, the total occupation rent claim for the two-thirds owner approached the jurisdiction of the court, at $29,500. This amount was subject to a set-off for utilities paid for by the defendant. The cost of a furnace that the defendant unlawfully removed from the home when she was evicted was also added to the damages awarded to the plaintiff, for a total claim of $25,720.

At the time of this writing, costs of the Small Claims Court trial and motion had not been determined. However, as of November 2025, the defendant already owed in excess of $30,326.76 in costs to the Jolicouers arising from the 2017 action and its meritless appeal.

Takeaways

This decision offers several practical lessons:

• Occupation rent remains a flexible, equitable remedy that does not depend on a formal tenancy or prior demand.

• Prior judicial findings carry real weight and can be used to strike pleadings that attempt to relitigate settled issues.

• Limitation periods may be deferred where the viability of a claim depends on the resolution of related litigation. Notably, the discoverability section of the Limitations Act, 2002, does consider the time at which a proceeding would be "an appropriate means" to seek a remedy "having regard to the nature of the injury, loss or damage".

• Small Claims Court will do “rough justice” on quantum, relying on the best available evidence and exercising broad discretion.

• Affidavit evidence matters—and must be challenged proactively. Here, unchallenged statements were admitted under rule 18.02. No summons was issued by the defendant to the deponents of the two non-party witnesses who provided affidavits.

More broadly, as the monetary jurisdiction of the Small Claims Court expands, increasingly complex disputes are finding their way into that forum. Counsel representing parties before the Small Claims Court must balance its procedural efficiencies against its limits—particularly on costs recovery where pre-trial motions are attempted.

The successful plaintiffs were represented by Douglas W. Judson of Judson Howie LLP.

For more information, please contact:

Douglas W. Judson (he/him)

Judson Howie LLP

Email: doug@judsonhowie.ca